This is a motion to dismiss or affirm by the appellees in an appeal from the decree of the Circuit Court of Appeals of the Eighth Circuit.

The record discloses the following:

On May 10, 1917, the appellee Lamar Lyndon brought suit in the circuit court of the city of St. Louis, Mo., against the appellant, the Wagner Electric Manufacturing Company, to recover royalties on a patent owned by Lyndon, alleged to be due under a contract between the parties. A trial before a jury was had, in which evidence was introduced by both sides, and at the close of all the evidence, the court directed a verdict for the plaintiff, and judgment followed for $12,029.50. The Wagner Company appealed from this judgment to the Supreme Court of Missouri, where it was duly assigned for hearing to Division No. 1 of that court under a provision of the Constitution of Missouri that the Supreme Court shall consist of seven judges and shall be divided into two divisions, one to consist of four judges, known as Division No. 1, a majority thereof to constitute a quorum, and its judgments as to causes and matters before it to have the force and effect of law. On January 21st, the appeal was argued before three of the judges of Division No. 1, and printed arguments were filed by both parties. Judgment was subsequently rendered by the four judges (Lyndon v. Wagner Electric Mfg. Co., 285 Mo. 77, 225 S. W. 711), the opinion being written and filed, with the concurrence of the other three judges, by Judge Woodson, of the Division. Judge Woodson had not heard the oral argument. The Wagner Company filed a motion for rehearing, and a motion to transfer the cause to the court in banc, which were denied.

The Wagner Company then applied to this court for a writ of certiorari to review the judgment of the Missouri Supreme Court, which was denied in April, 1921. Wagner v. Lyndon,
256 U. S. 690, 41 Sup. Ct. 449, 65 L. Ed. 1173. Thereafter, on a mandate from the Supreme Court of Missouri, the state circuit court issued execution against the Wagner Company on the judgment. The sheriff made a levy on the real property of the Wagner Company, which filed a bill in the United States District Court for the Eastern District of Missouri, against Lyndon and the sheriff, seeking an injunction against their proceeding with the execution. Application for a preliminary injunction on this bill was denied by the District Court. The Wagner Company then paid the judgment and costs, amounting to $15,015.29, to the sheriff, and at once brought the present bill in the United States District Court against Lyndon and the sheriff, seeking to hold the sheriff as trustee in his custody of the fund, and to enjoin him from paying the money to Lyndon, and Lyndon from receiving it. The jurisdiction was asserted on the ground that the case was one arising under the Constitution of the United States. The District Court heard the case and dismissed the bill. The Wagner Company then appealed to the Circuit Court of Appeals, which affirmed the decree of the District Court. 282 Fed. 219.

The grounds urged in behalf of the relief sought in the District Court, the Circuit Court of Appeals, and this court were, first, that the action of the circuit court of St. Louis, in directing a verdict for plaintiff without evidence to warrant such action, deprived the defendant, the Wagner Company, of its property without due process of law and denied it the equal protection of the laws; second, that the action of Division No. 1 of the Missouri Supreme Court in hearing the case on appeal with three judges and allowing a fourth, who did not hear the oral argument, to take part in the decision and write the opinion, and the refusal of Division No. 1 of the Supreme Court of Missouri to transfer the cause to be heard by the Supreme Court in banc, as required by the law of Missouri when a federal question is involved, deprived the Wagner Company of its property without due process of law and denied it the equal protection of the laws.

The legislation of September 14, 1922, referred to (
42 Stat. 837, c. 305), provides that, if an appeal or writ of error has been or shall be taken to, or issued out of, any Circuit Court of Appeals in a case wherein such appeal or writ of error should have been taken to, or issued out of, the Supreme Court, such appeal or writ of error shall not for such reason be dismissed, but shall be transferred to the proper court, where it shall be disposed of as if the appeal or writ of error had been properly taken.

The decree of affirmance in the Circuit Court of Appeals was entered on July 7, 1922, but a petition for rehearing was filed, and that petition was not denied until September 18, 1922, or four days after the passage of the foregoing act. Before the decree of affirmance became finally the act of the Circuit Court of Appeals, this law came into force, and, however that may be, it is in force now to govern us in the direction which we, in reversing the decree of affirmance, should give to that court. That direction should be to transfer the case to this court, to which it should have been brought by direct appeal from the District Court, under section 238 of the Judicial Code.

The case is here on appeal allowed by a judge of the Circuit Court of Appeals. The case has been submitted to us on the motion to dismiss or affirm, which is a hearing on the merits. All parties have filed briefs. Is it necessary for us to go through the idle form of remanding it to the Circuit Court of Appeals, to enable that court to transfer it back to us for a second consideration? Certainly such unnecessary consumption of time and labor is not in the spirit of the Act of September 14, 1922. Having the case here, and having heard it on the merits, we think we may properly consider that done which ought to have been done, treat the case as here by appeal from the District Court, and dispose of it, as we would do if the Circuit Court of Appeals had formally transferred it to us.

The only grounds urged by the appellant for a reversal of the decree dismissing the bill of complaint are frivolous and without merit. The first involves the proposition that in a collateral attack upon the validity of a judgment in a state court, a federal court can examine the evidence to see whether a direction by the court to a jury to find a verdict was justified by the evidence. This would be to make such an attack serve the purpose of a writ of error. More than this, even if it were held that the direction deprived the defendant of the right of trial by jury (a holding shown to be erroneous by Treat Manufacturing Co. v. Standard Co.,
157 U. S. 674, 15 Sup. Ct. 718, 39 L. Ed. 853), still the deprivation of a right of trial by jury in a state court does not deny the parties due process of law under the federal Constitution (Walker v. Sauvinet,
92 U. S. 90, 23 L. Ed. 678; Missouri v. Lewis,
101 U. S. 22, 31, 25 L. Ed. 989; Twining v. New Jersey,
211 U. S. 78, 110, 111, 29 Sup. Ct. 14, 53 L. Ed. 97; Minneapolis & St. Louis R. R. Co. v. Bombolis,
241 U. S. 211, 217, 36 Sup. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505). The second ground is equally unsubstantial. The machinery for review of the judgments of courts of first instance is wholly within the control of the state Legislature Missouri v. Lewis,
101 U. S. 22, 30, 25 L. Ed. 989and when the review by four judges is given, and an opinion is rendered by three of them, constituting the quorum, the mere fact that the fourth did not hear the oral argument, but wrote the opinion on the printed arguments, is at most an irregularity, which does not in the slightest degree affect the validity of the judgment. The contention that Wagner was entitled under the Missouri constitution to have the cause heard before a full court, because a federal question was involved, is wholly without merit, because the question of the right to transfer was a question of Missouri law, upon which we are bound to accept the decision of the Missouri courts. Missouri v. Lewis,
101 U. S. 22, 25 L. Ed. 989.

We are asked by counsel for appellees to impose a penalty on the appellant for delay. The history of the case and the conduct of the Wagner Company leave no doubt that the litigation in the federal jurisdiction and the successive appeals have been prosecuted solely for delay. Have we power to impose damages in this case?Section 1010 of the Revised Statutes (Comp. St. § 1671) provides as follows:

'Sec. 1010. Where, upon a writ of error, judgment is affirmed in the Supreme Court or a Circuit Court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs, at its discretion.'

Section 1012 (Comp. St. § 1673) has the effect to make section 1010 applicable to appeals in equity. The second paragraph of the twenty-third rule of this court (32 Sup. Ct. xi) provides that:

'In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court and shall appear to have been sued out for delay, damages at a rate not exceeding 10 per cent. in addition to interest shall be awarded upon the amount of the judgment.'

The third paragraph is:

'The same rule shall be applied to decrees for the payment of money in cases in equity unless otherwise ordered by the court.'

An objection to allowing damages in the present case suggesting itself is that the decree appealed from was not a money judgment. It is true that this whole litigation in the federal jurisdiction has been initiated and carried on solely to secure the delay of the payment of a money judgment in the state court, but that is hardly within the exact terms of the twenty-third rule. Sections 1010 and 1012, Revised Statutes, are, however, not so restrictive, and they give this court power to impose just damages upon the affirmance of any judgment or decree, for delay. Gibbs v. Diekma, 131 U. S. Appendix clxxxvi.

The case should be dismissed for lack of jurisdiction, because the grounds of appeal are frivolous. In a dismissal on this ground a penalty may be imposed, just as if upon an affirmance. Deming v. Carlisle Packing Co.,
226 U. S. 102, 109, 33 Sup. Ct. 80, 57 L. Ed. 140.

We think that damages of $1,500 for delay are not excessive in this case. We therefore direct the dismissal of the appeal, with damages of $1,500 and the taxation of costs as upon an affirmance of the decree of the District Court.

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